Trying to keep up to date with applicable building codes can be a challenge for contractors, especially when work takes them to more than one jurisdiction. Even those that limit their services to just one location might be looking at multiple layers of regulations — city, county, state — that change frequently. This can also be a challenge for architectural firms that design projects around the country.
It was this obstacle that led architect Scott Reynolds and his brother Garrett to found UpCodes, a searchable database of state and other building regulations. Basic access to all codes, updates and local amendments is free, but the company also offers a premium, subscription-based service with access to a more robust search function, collaborative tools and bookmarking.
UpCodes is constantly adding new building codes and other construction regulations to its site, expanding access for its subscribers, but not everyone agrees as to how the company goes about it, including the International Code Council (ICC).
ICC v. UpCodes
The ICC is a nonprofit organization that develops model building codes commonly referred to as I-Codes. Content from these 15 volumes of I-Codes, which cover everything from new commercial and residential construction to plumbing to green building, have been adopted in some form in every U.S. state, Mexico and other international jurisdictions.
The ICC issues updates to the codes every three years after an extensive development process that pulls in staff and volunteers from the AEC industry as well as public safety officials and other groups with an interest in contributing to the model regulations. The ICC recently passed 14 model codes for new tall wood construction, regulations that will be included in the organization’s 2021 I-Code updates. The committee work involved in developing the codes took more than two years.
And none of this happens for free.
In order to help fund the organization's mission of code development and promoting building safety, according to ICC attorney Kevin Fee of Morgan Lewis in Washington, D.C., the nonprofit sells access to the I-Codes — a la licensing to the electronic code database service MadCAD — and also sells books and premium access to its codes via a subscription-based service accessible through its website.
States have the option of paying a licensing fee to be able to make the ICC codes they’ve adopted available to download for free, along with the rest of their building codes, Fee said. Other states like Florida prefer to let the ICC publish and sell copies of their codes to help fund its mission.
No matter the arrangement, he said, all states make ICC codes available with the permission of the ICC.
Not so with UpCodes.
Are I-Codes in the public domain?
The ICC sued UpCodes in 2017 for copyright infringement, and the two have been embroiled in a lawsuit ever since. At the heart of ICC’s complaint is that UpCodes has no right to distribute the I-Codes without the ICC’s permission, even though those codes have been incorporated into law.
UpCodes’ basic argument, said Joseph Gratz with Keker & Van Nest LLP in San Francisco, is that no one gets a monopoly on the law, not even the law's author.
Gratz, who is representing UpCodes in the action brought by the ICC, said the tech firm doesn’t dispute the ICC’s copyright of the model codes it develops but maintains that once the codes are enacted into law, they may be freely copied without infringing copyright.
In support of that view, Gratz cited a 2002 case, Veeck v. Southern Building Code Congress International, Inc., in which the United States Court of Appeals for the Fifth Circuit ruled that model codes enacted into law no longer enjoyed copyright protection.
Fee said, however, that there are more courts that have reached the contrary conclusion, ruling that a government’s reference and/or incorporation of a private group’s standards did not destroy copyright protection for the author.
“The Copyright Act is a very detailed statutory scheme that sets forth ways that parties can lose or transfer their copyright protection,” Fee said, “and does not provide for the destruction of any copyrights as a result of any government adoption of a privately authored work.”
Public.Resources.Org also has cases working its way through the courts, perhaps most notably American Society for Testing and Materials et al. v. Public.Resource.Org, Inc. The case was brought against the nonprofit by the ASTM and other standards developing organizations after the group, led by public domain activist Carl Malamud, posted their codes online.
Neha Bhalani, an associate in the intellectual property group at law firm Chiesa Shahinian & Giantomasi PC in New York City, said the issue could use some clarification from the courts.
Typically, she said, once something becomes part of a code, it falls into the public domain. However, where governments used to develop regulations, they’re blurring the lines by turning over that duty to nongovernmental agencies, which must fund their work in some way.
The question of Fair Use
There’s also the Fair Use argument, but Fee said that’s a nonstarter for UpCodes.
Fair uses of copyrighted works, which allow a third party to reprint or publish protected material without permission of the owner, include commentary and criticism. So, a reprinting of an I-Code in order to point out flaws or discuss its merits would typically not be looked at as copyright infringement.
“There really is no support for the proposition that a for-profit organization is entitled to copy the entirety of a model code,” he said.
If an individual or company is able to sell the same thing as the copyright owner for profit, Fee said, anybody could appropriate copyrighted works and then sell them in direct competition with the copyright owner. Even if it were not selling the information, UpCodes’ dissemination of the I-Codes without a licensing agreement still harms the ICC and undermines the code development process, he added.
“There really is no support for the proposition that a for-profit organization is entitled to copy the entirety of a model code.”
ICC attorney, Morgan Lewis in Washington, D.C
“If UpCodes,” Fee said, “is giving away more content for free on its website than the ICC, then many people are not going to purchase books from the ICC. Many of them aren't going to purchase the premium ICC service that allows licensees to collaborate and have access to these codes, and they may not pay for the MadCAD service.
“So,” he added, “I don't think there's any real dispute that some people are likely to substitute a purchase … by viewing UpCodes' website."
But Gratz said claiming ownership of the law is not the way to win over users.
“If the ICC develops a service that’s better, faster, easier and more feature-rich than UpCodes, that’s the way to compete with UpCodes,” he said, not by saying you’re not allowed to put the code on your website.
The ICC does allow users to view the I-Codes for free on its website without the ability to copy, paste or bookmark codes of interest. However, Gratz said, that is akin to telling the user he had notice of law even though it’s buried in the basement of the planning department.
“That’s not how the law works,” he said.
As a nonprofit organization, Fee said, the ICC strives to balance wanting codes to be freely available and being able to develop and update them.
Final briefs are due to the court at the beginning of August. Fee said he does not expect a decision for several months, and both parties anticipate an appeal no matter which side the decision falls.
As far as future implications, Fee said, an ultimate decision in UpCodes’ favor could stymie development of building codes and other standards because many standards development organizations rely on the sale of their copyrighted works to fund their nonprofits. This means the ICC might have to wait longer between updates or drop development of some content, like green building codes.
Or, the ICC could start charging others to participate in the code development process, although that would more than likely exclude small public advocacy groups that could not afford it. Alternatively, Fee said, state and local taxpayers could fund the processes, but that is unlikely to be an attractive or realistic option.
But, UpCodes' Gratz said, "Fundamentally, the people have a right to have access to the law ... not just the ways that ICC chooses that they can have access to the law."
“There are some things that are just the law, and building codes are the law," he said.